In memory of the 215 Indigenous children that were discovered at a BC residential school in recent weeks, this post will discuss the issue of residential schooling and the effects they have had on our criminal justice system.

For seven generations, residential schools separated children from their families with the intent to also separate them from their respective cultures. Attendance was mandatory by the 1920s and the schools were often overcrowded and underfunded. Their quality of education was poor. Abuse levels were high. The last residential school closed in 1996; however, the long-lasting effects of these schools continue to cause intergenerational trauma, which has ultimately affected Indigenous representation in the criminal justice system.

What is one small step we’ve taken to help address this? Section 718.2(e) of the Criminal Code requires that the courts consider an Indigenous offender’s background in determining the appropriate sentence. This means that courts are allowed to consider alternatives other than jail if the circumstances are appropriate – including restorative justice approaches. These approaches rehabilitate the offender by allowing them to reconcile and address the matter with the victims and their community directly. This approach takes Indigenous culture into account and is believed to help heal all parties involved.

The application of section 718.2(e) was discussed in the case of R v Gladue, which involved a 19-year-old Cree woman who killed her common-law husband. She was intoxicated and had suspected that her husband was being unfaithful. She was charged with second-degree murder but plead guilty to manslaughter. The court found that she was remorseful, had attended counselling for her substance abuse, and completed Grade 10 while on bail. The trial judge, however, decided that because she was not living on the reserve at the time of the murder, section 718.2(e) of the Criminal Code did not apply. She was sentenced to three years in prison. She appealed her sentence, and the British Columbia Court of Appeal agreed with the lower court but felt that it was time for the Supreme Court of Canada to clarify the application of section 718.2(e) of the Criminal Code.

The Supreme Court found that the intent of this legislation was to lower the high rate at which Indigenous peoples are incarcerated. The court also recognized restorative justice as an alternative while at the same time recognizing that incarceration does not always achieve the goals of a sentence.

The practical effect of Gladue was the creation of Gladue Reports. These are pre-sentence reports that describe the accused’s unique background and heritage so that courts can consider the role these factors may have played in bringing the offender before the court. They are usually prepared by a Gladue writer on behalf of the offender and every Indigenous offender has a right to present a Gladue report to the court for its consideration. This does not necessarily mean that the sentence is always reduced or that Indigenous offenders are rarely sentenced to serve jail time. It is up to the judge how much weight should be given to the Gladue report.

The Gladue report can include the background of the offender’s parents and grandparents, as well as the intergenerational impacts of residential schooling. Also, there does not need to be a direct link between the offender’s background or heritage and the offence committed for the sentencing judge to implement Gladue principle in their sentencing decisions (See R v Ipeelee).

If you or someone you know have any questions about how Indigenous heritage is taken into account throughout the criminal justice process, don’t hesitate to reach out to us at DeMelo Law for further information.